In Feb 2022 we ran 4 sessions on ‘Future Proofing the Local Plan making Process’. Plan makers discussed what it’s like ‘carrying on planning’ at the moment, what's unlikely to change when planning reform comes, and the implications of stopping, pausing or shelving local plans. We also discussed those things that make for a smoother examination process. Below is a recording of the presentations and a summary of the discussion topics. The summaries contain a few top tips and capture some of the key things on front-line planners' minds at the moment.
The Government’s most consistent line continues to be 'get an up to date plan'. These presentation from our partners framed a discussion session about the things we are learning while supporting councils preparing and reviewing their Local Plans. Under discussion are project management, pragmatic/proportionate approaches to evidence bases and cooperation on strategic matters. How can we improve approaches to plan making in the present system while preparing for whatever the new system will look like?
Evidence Bases – Mary Elkington Figura Planning (presentation starts at 0:00)
Duty to Cooperate – Andrew Seaman IPE Ltd (presentation starts at 18:31)
Project management – Chloe Salisbury DAC Planning (presentation starts at 41:34)
Each presentation contains top tips and recommendations.
Top Tips: The local plan is about more that housing. Understand the risks of not having an-up-to-date plan. Then decide what course of action is best for your community and place.
Planning reform is on the horizon and that is making some people nervous about carrying on planning until the reform details are clear. The focus of contention for most local plans is housing numbers and how they are calculated. Many councils are announcing that they are stopping, pausing or ‘shelving’ local plans until the future is clearer.
This leaves planners in a sort of limbo. Places still need to be planned for and challenges such as job creation, home building and carbon reduction do not disappear simply because the local plan is on hold. Stopping the local plan can undermine other important elements that need to be planned for e.g. health services, infrastructure and the environment – not just sites for housing development.
However the reforms shape up, there will be some form of transition from the present system to the new one, and perhaps a new system may be implemented in ‘waves’. The Chief Planner has recently urged councils to continue with local plans and maybe that is because those councils with the most up to date plans may benefit more swiftly from the new system.
It all comes down to the risk associated with a) the extent of change in the planning reforms, b) the timing of when the reforms take effect, and c) what happens in between if your plan is out of date? What risks e.g. speculative development, threats to green fields/Green Belt, delays to infrastructure, appeal costs etc. are councils prepared to expose themselves to while defending communities from the potential for over-development based on (as they see it) unrealistic housing need numbers?
Officers are increasingly asked by members if they can use an alternative to the ‘standard method’ for calculating local Housing Need (LHN). It is possible, however no one has successfully argued the number downwards, and to do so and arrive at a sound plan is far from simple or straight forward. How might you frame a discussion about this with members?
The NPPF requires a ‘standard methodology’ (a formula) to be used ‘the ‘Standard Method’. The standard method uses a formula to identify the minimum number of homes expected to be planned for - a minimum annual housing need figure. Authorities are not bound to use the standard LHN method. The NPPF sets out the playing field for using an alternative method (Paragraph 61) noting that that standard method must be used in all but ‘exceptional circumstances’ and any such alternative approach must also reflect current and future demographic trends and market signals. Inspectors can only find a plan sound if they conclude that the alternative approach used is justified. PPG advice makes it clear that councils that choose to depart from the standard method “can expect this to be scrutinised more closely at examination.”
One of criticisms of the Standard Method is that it uses 2014 household growth projections. These are approaching being 10 years old. Add in the effects of Brexit, the Pandemic and uncertainty about Planning Reform and it's easy to see why this is playing on minds. The reason these projections are used are set out in the Feb 2019 updated Planning Practice Guidance (PPG) – it is to provide stability and to ensure historic under-delivery and declining affordability are factored into calculations, and to be consistent with the Government’s objectives to boost the supply of homes.
What if we used more up to date projections? The NPPF and PPG tell councils not to substitute the data in the standard method with it's own data. To produce an alternative number using a more up to date data set, the council must have established ‘exceptional circumstances’ and produce an alternative need figure “that also reflects current and future demographic trends and market signals.”
What are the ‘exceptional circumstances’ that allow councils to use an alternative to the Standard Method? This is not set out in PPG or the NPPF. Simply ‘not agreeing’ with the standard method or having ‘grave reservations’ is not enough. Officers understand the deep concerns many members have about the standard methodology, but these concerns alone do not constitute exceptional circumstances.
In conclusion, the standard method sets out what method is expected to be used and how to apply it. There is nothing near the same thing for how to put together an alternative method that will be accepted as a justified basis for calculating housing need at examination.
Top Tips: Keep faith with available data. Evidence bases are snapshots in time; they can never be completely up to date. Sensitivity & Secenario testing is useful. Include an ‘early plan review’ in your Local Development Scheme (LDS)
A number of councils have paused local plan production as they wait the finer details of planning reform. Many also have concerns about the way housing numbers are calculated, and evidence bases more generally in the wake of Covid and what medium to long terms effects this may have on how people live and work, travel, and use traditional destinations like high streets.
There is no optimum time to put an evidence base together. By its nature, the way evidence is put together for Local Plans means that it can never be completely up to date. This has always been the case. Plan makers can only work with and interpret the most up to date evidence available to them at a given time. The best Local Plans are the ones that can demonstrate how the most up to date evidence available has been applied to create policies, have a realistic degree of flexibility built in and a robust LDS that ensures the plan is kept under regular review.
One way of building in an additional layer of confidence to the evidence base is to consider doing some ‘sensitivity’ testing. For example, on employment land you may be concerned about over-allocating land, so some sensitivity testing e.g. on the impact of the Pandemic may yield interesting results – it may not have as big an impact as you might think. This sort of work is really useful when talking to members about the local plan – you can show that certain scenarios have been tested and discuss the impacts with them. Moreover it should also contribute to demonstrating a robust and proportionate approach at examination. It is and always has been good practice in uncertain times to build in an ‘early plan review’ in your Local Development Scheme (LDS) to give stakeholders confidence that the plan can adapt and cope with all potential and significant changes to evidence and circumstances.
Local Plans have always been challenged by economic cycles; the ups and downs of the stock market, changes in working and retail practices, and we now have the new challenges of understanding the effects of Brexit and the Pandemic. These are the sorts of things that evidence bases have always grappled with – national policy refers to market signals – that is the territory we are in – considering all of the issues and their effect on our economies and also taking into account wider economic forecasts and how they may affect our Local Plans – it has ever been thus.
At examination, Inspectors will be interested in whether the evidence justifies the strategy, that it is proportionate and robust. They will expect to see flexibility built in through clear acknowledgement of e.g. ‘known unknowns’ and a pragmatic approach to these within the plan that won’t require a fundamental rewrite at examination.
Top Tip: go back to first principles: what is your vision for the Town Centre?
There are many councils re-thinking their Town Centres. Shopping habits have been changing for a considerable time and the use of outdoor spaces has been brought into even sharper focus by the Pandemic. Changes to the Use Class Order (UCO) seeking to introduce more flexibility are also a key factor affecting the future of town centres.
Many councils are asking themselves about the place of retail assessments going forward. Retail sectors have always moved faster than the local plan production cycle, so policy has to be about cultivating a favourable and realistic environment for retail. The traditional retail sector has been in decline for some time, and when you marry this with significant events like the Pandemic, it is more important than ever to look beyond retail and consider the vitality of the town centre as a whole.
Going back to ‘first principles’ is always useful. It is only once there is a clear vision for your Town Centre that you can be clear about what evidence you need for what you want to achieve. It may be best to resist doing traditional studies such as footfall etc. until you are clear about your approach or have a specific need to address. For example, are you trying to regenerate parts of the town centre, protect parts, bringing in different uses? What are you planning for the public realm? Understanding this allows you to make sure you are commissioning work and evidence to support / answer the questions you need to create the policy to deliver your Town Centre strategy.
Top Tip: Publishing your methodology is an opportunity for better councillor and community engagement and a smoother examination process.
The National Planning Policy Framework (NPPF) and Planning Practice Guidance (PPG) do not provide much direction on the site selection process. Many places therefore neglect to set out their selection criteria/methodology when submitting their Local Plan for examination. This is a missed opportunity. Clearly setting the criteria and methodology out is really helpful when talking to councillors and communities (why have these sites been chosen and not others?) and, importantly, to explain the application of the spatial strategy to inspectors at examination.
It is useful for all stakeholders to understand the relationship between the evidence (e.g. the Housing and Employment Land Availability Assessment (HELAA) and Sustainability Appraisal (SA)), the ‘call for sites’, and how the planners eventually choose the sites to support the delivery of the spatial strategy. It helps everyone to understand that the council has a spatial strategy with objectives that it wishes to achieve through the local plan and that not every site put forward will help meet those objectives.
Stand-alone parts of the evidence base e.g. SA/HELAA don’t pin the process down in sufficient enough detail, so setting it out separately and incorporating all other relevant studies e.g. Green Belt, AONB etc. can really help in the community engagement and examination process.
In very contentious or constrained places the site selection methodology will come under strong scrutiny at examination. Sites selected can be quickly undermined if the process for selecting them isn’t clear / can’t be clearly explained.
To help put this together it is useful to think early on about how the evidence base objectives can be aligned with site selection work so that there is a better read across. Publishing the methodology alongside the call for sites is also a useful way of ensuring there is transparency about the process and how sites will be selected.
Some site selection topic paper examples:
South Staffs: https://www.sstaffs.gov.uk/doc/182794/name/03%20Housing%20Site%20Selection%20Topic%20Paper%202021%20FINAL.pdf
Tonbridge: https://www.tmbc.gov.uk/downloads/file/573/ed11-18-4-19-site-selection-topic-paper
Dartmoor: https://www.dartmoor.gov.uk/__data/assets/pdf_file/0025/87019/Topic-Paper-9-rev2-FINAL.pdf
Runnymede: https://www.runnymede.gov.uk/planning-policy/planning-policy-evidence-based-documents/13
Top Tip: you can’t avoid doing an SA on an updated plan
A question arose about whether allocated sites from an existing plan can be brought forward to an updated plan without opening them up to sustainability appraisal? The answer is more about the problems that you will face by not doing an SA than whether you can avoid doing one. There are many broad questions such as whether the spatial strategy is changing and if so, are the sites under consideration still aligned with that? More specifically considerations like changes in circumstances e.g. has the deliverability of the sites changed? Or has the viability situation changed? (a common issue).
The SA’S role is not to look at individual sites; it looks at the overall options. Plus if you are changing the scoping framework of the plan, there may be different outcome indicators - so in terms of SA Regulations you are potentially in the territory of changing a policy/programme – which automatically triggers a SA. You may be able to do something lighter touch but not avoid the SA completely.
From an examination point of view, a plan will be being updated due to a change in material circumstances. Developers could justifiably argue that sites previously not included should be re-considered, and these are not the sorts of challenge you want to be dealing with at examination.
Top Tips: Be bold. Do a bit of homework. Tell consultants exactly what you want. Don’t just accept a ‘Standard Report’
Many councils find that despite being clear about what they want, consultants often still produce a standard report, on a standard template, and covering lots of items not specified. Planners want a report structured around the questions the council are interested in. Unnecessarily long, padded out reports just make finding the key information difficult. Inspectors will have similar issues at examination.
It is worth taking a little time to look at the previous work of the consultants you are considering using. It is then easier to point out what you do and don’t want. Before work commences have an inception meeting and clearly set out exactly what you are after, the issues that you are focused on, the answers to what questions you need, the style of report you want, and how you want concerns and issues drawn out (e.g. executive summaries). Councils and inspectors don’t need the NPPF explained to them so challenge how much generic padding is included.
It is also useful to share the key milestones in your project plan with consultants so that it is clear where and when you need the evidence from the commissioned work to be ready. Inspectors encourage councils to be confident and bold; be clear what you want and when, attack the issues clearly with the evidence, and don’t bury the key information. Short, concise reports that cover the issues head-on are what you should submit, with good executive summaries if detail is needed.
Top tip:
The planning White Paper signalled the potential for a more National approach to some Development Management (DM) and Local Plan Policy. The emergence of National Design Codes and Guides are further evidence of a more National approach to elements of local planning. They will of course need to be some locally defined policy and the continued significance of Neighbourhood Planning could also be the conduit for the more specific and local ‘flavours’ of local planning and DM policy to be part of local planning.
For examinations, councils often send in over-detailed policy information with their local plan submission so having less local detail to wade through will help speed things up at examination. The best plans already contain short, sharp policies that keep the detail of the plan to a useful minimum, and leave room to create ‘hooks’ for more detailed policies to attach to via Spatial Development Documents (SPD)s. Also, some policy may eventually be replaced by wider regulations, Building Control or even permitted development e.g. Electric Vehicle charging – so think before launching into lots of detail on certain topics.
If local plans (as per the White Paper) are also heading towards a 30-month production timescale then plan makers will have to keep DM policies light touch and let national policy do its job.
Top Tips: Every local plan has to comply. Disagreements and differently paced plans are not excuses to stop engaging. Face the difficult issues head on. Don’t leave things too late.
The Duty 'Laid Bare'
It is useful to think of the Duty to Cooperate as consisting of two interlinked strands:
1) Process: the practical means by which the duty has been complied with (the plan either passes or fails this test, and therefore the whole plan either passes or fails)
2) Outcomes: the specific plan making provisions which arise from the process of cooperation. For example agreement on housing land supply to meet requirements, infrastructure needs etc. (These are matters for the tests of soundness).
When neighbours ‘are being difficult’
Many councils find themselves is positions where they have best intentions regarding the Duty to Cooperate but have difficulties with achieving active, ongoing, constructive engagement with one or more of their neighbouring LPAs or prescribed partners. A problem is often that plans are being put together across different geographies at different timescales and the issues that are pressing to one entity at a specific time just aren’t fully on the radar of the others. There are of course instances where relationships have broken down and LPAs or prescribed partners are deliberately ‘not being as helpful as they could be’.
Nonetheless, every council has to demonstrate, with evidence, that it has had constructive and ongoing discussions about strategic matters with strategic partners. The pace of plan making or a breakdown in relationships does not mean you can ignore the duty to cooperate. Each LPA will eventually need robust evidence that the duty to cooperate has been carried out – and it makes no sense to ignore or be less-than-helpful to efforts by those councils actively trying to drive the agenda- in this sense one councils evidence is everyone’s evidence.
If parties are not at a point where a Statement of Common Ground (SOCG) can be prepared, tools such as a Memorandums of Understanding are a useful way of setting out in broad terms what strategic partners have agreed to work on and the basis for how they are going to go about it.
It is also important to remember that the duty to cooperate is an ongoing process and each council needs to keep a full and complete audit of the strategic matters under discussion, areas of agreement/disagreement, actions taken and outcomes. Too often councils are left scrambling around just before Reg 19 looking for minutes of meetings and copies of agreements – often going back several years, to fit around the issues covered in the plan.
Leaving things too late
In terms of an examination it is most useful when contentious issues are addressed head-on. It doesn’t help to bury issues or under-play them – they always surface during the examination. Set out all issues clearly e.g. in the Statement of Common Ground (SOCG). It is important that inspectors are able to see the dialogue between parties, understand what has been difficult/contentious, and see that there has been ongoing and effective engagement – don’t defer things to subsequent plans or updates. It is a challenge, but councils must avoid allowing disagreements to result in the process of cooperation stopping or large gaps over time appearing. Remember, in the current system the Duty to cooperate can’t be fixed like other things as part of the examination.
Proportionality
Often engagement and agreement between officers is appropriate especially if there are no significant cross boundary issues. However, it is critical that you have a clear and agreed delegation protocol/agreement that clearly allows officers to determine non-contentious duty to cooperate matters. Proportionality is important and where issues can be easily agreed at officer level then attempts should be made to do so making sure that there is a clear decision-making audit trail and officers have authority to sign things off. There should also be a process for such matters and decisions to be reported back to members to verify.
Single Vs Multiple Statements of Common Ground
Agreeing what goes into an SOCG among multiple strategic neighbours can be a challenge especially where there are contentious issues and disagreements. While it is generally best to try and produce a single SOCG, where there are multiple agencies involved then individual SOCGs with each party may be preferable. It will help all parties, including Inspectors, to hone-in and focus on the areas of contention. Where it is a single issue of contention, some councils have produced an SOCG with an appendix containing details of the specific issue of contention.
The journey to Soundness
So, having demonstrated to examiners a compliant approach to the ‘process’ of the duty to cooperate, there is still the matter of general plan ‘soundness’ to achieve. Councils have to demonstrate that the position they have arrived at in terms of strategic matters contributes to the plan satisfying the tests of soundness. There may be disagreements on how strategic issues are addressed, but it’s key to be able to satisfy the Inspector and demonstrate with evidence that all that could possibly be done has been done. A good SOCG can help you focus – narrowing things down and demonstrating that everything has been done. Having separately set out areas of specific disagreement and the evidence for what has been done to try and resolve the matter(s) allows focus and helps avoid ‘infecting’ the other more ‘successful’ work you have done, and agreements achieved.
SOCGs with Statutory Bodies
It is recommended that SOCG are established with statutory bodies. SOCGs with e.g. Natural England, the Environment Agency are a really useful way of demonstrating that you have discussed strategic issues. SOCGs with Highways can also be worth their weight in gold. But don’t stop there – SOCGs with large site promotors covering items such as how sites are coming forward, phasing etc. can be useful deliverability evidence, putting councils in a strong and joined-up position at examination.
Engagement with statutory bodies and others should be established as early as possible. Many statutory bodies have resource and timing issues. Talking to them early can avoid a situation where they are asked to endorse plans and decisions at the last minute and simply can’t meet the timetable – potentially knocking the whole production timetable off course. Many issues with the Duty to Cooperate arise because liaison and discussion doesn’t happen regularly enough or doesn’t exist until a ‘cold call’ request for response is made. This is all too late, pressured and untidy. Setting up forums and/or inception meetings are useful ways of getting agencies on board early and keeping relationships ongoing throughout the plan production process. They are also a useful way of making sure issues with resources or complex issues can be kept open and transparent – no surprises.
Resources
It is appreciated that commitment to a significant level of communication is not possible in all places. This makes project and resource management important. It is crucial to have communication and feedback mechanisms in place that achieve your aims while also making best use of resources.
Top tips: This is an ever-moving agenda so push now for as much as you can in the Local Plan. Planning cannot solve the issue on it's own. Stay flexible with language and policy wording to stay adaptable while the NPPF, Planning Legislation catch up and the development industry updates its approaches
The role for local plans in mitigating climate change and achieving carbon neutrality are clear to everyone. The ability to deliver that role is, in practice, limited to some degree by current frameworks and legislation arguably not reflecting the National ambitions and targets set by Government, and the viability challenges of delivering developments to the highest standards.
Things are shifting more rapidly than ever and is front and centre of many council’s strategies and local plan reviews. Local Plans and planners are beginning to push the boundaries and explore just how far local plans can go, with many creating Development Plan Documents setting out new and enhanced policies and targets for climate change mitigation and building flexibility into policy wording to be able to respond quickly as changes in national policy, legislation and technology.
The housebuilding industry has its own carbon neutrality targets – many have committed to carbon neutrality by 2030 and will have to change the ways they work and what they deliver to achieve it. As things move in the right direction it is a good time to build stretching targets and requirements onto local plans. The trick is to be aspirational with targets and policies – worded in such a way allow you to hit a ‘sweet spot’ of achieving plan viability and enough flexibility to create more specific SPDs at a later date.
Climate change mitigation is gradually becoming more of an examination. The NPPF update in June 2021 brought climate change mitigation in the description of the presumption in favour of sustainable development and there is National guidance about how local plans can mitigate against climate change.
Top Tip: Targeted/Bespoke engagement; it’s resource intensive but gets the best results
Many councils asked about the best ways to identify Gypsy & Traveller sites. Traditional call for sites yields a low response. Targeted / bespoke engagement with the Gypsy & Traveller community is an effective way to identify sites - finding out what land is in their ownership, what would they like, and perhaps doing some twin-tracking twin tracking with pre-app (a planning application can be easier to understand that a local plan site allocation). Bespoke engagement is crucial - it’s resource intensive but yields the best results. Some councils, as part of strategic allocations, have assumed that a certain number of pitches will come through on those larger sites. Where you are in a large geographical area, working with site promotors is a useful way to try and identify sites that meets that community’s needs and doesn’t impinge on the design and delivery of the large allocation. Modern Gypsy and Traveller sites utilise park homes / chalets which land promotors are more likely to be willing to provide.
Top tip: ignoring the Green Belt is not a strategy
When assessing land availability there is a sequence (NPPF Paragraph 141) to follow so it is reasonable to assess urban sites first, and deal with Green Belt sites once a Green Belt review or assessment is undertaken. There is no requirement to do the HELAA all at once. In practice most councils run a call for sites and will accept sites all the way through the process which is fine as long as it is documented how the site selections have been made. This will also inform an assessment of whether exceptional circumstances exist. The key thing to consider is developing the land capacity evidence – e.g. land supply, urban capacity, industrial site release, characterisation studies on density etc. to assess whether there is enough land available before considering the Green Belt.
Green Belt councils carrying out a call for sites often find they receive a number of submissions from developers/promotors arguing exceptional circumstances. Often, a council’s last Green Belt study was carried out a number of years ago and planners are left wondering about what additional evidence they may need to put together to assess these new sites alongside their overall site selection approach. Understanding the logic that promotors are using to establish why exceptional circumstances exist is a useful element in forming a response.
Councils that do end up having to consider releasing Green Belt land have to make the ‘exceptional circumstances’ case. A topic paper to supplement your spatial strategy setting out the exceptional circumstances is really useful. These examples were prepared under the 2012 NPPF, but are useful: